United States v. John F. Trullo, 809 F.2d 108, 1st Cir. (1987)

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809 F.2d 108
UNITED STATES of America, Appellee,v.John F. TRULLO, Appellant.
 No. 86-1728.
United States Court of Appeals,First Circuit.
 Argued Nov. 5, 1986. Decided Jan. 13, 1987.
Owen S. Walker, Federal Defender Office, for appellant.Sydney Hanlon, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S.Atty., was on brief for appellee.Before COFFIN, Circuit Judge, TIMBERS,
*
 Senior Circuit Judge, andBOWNES, Circuit Judge.TIMBERS, Circuit Judge:1John F. Trullo ("appellant") appeals from a judgment of conviction entered July18, 1986 in the District of Massachusetts, Walter J. Skinner, District Judge, on aconditional plea of guilty to a one count indictment charging appellant with possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec.841(a)(1) (1982). Appellant, having pleaded guilty, reserved his right to appealthe issues relating to his May 2, 1985 stop and arrest.2On appeal, appellant argues, first, that the officers did not have the requisitearticulable suspicion, required by Terry v. Ohio, 392 U.S. 1, (1968), to justifythe stop of appellant; second, that the officer's use of a drawn gun at the time of the stop turned that stop into an arrest for which probable cause was lacking;and, third, that the officer's decision to frisk appellant was unreasonable.3We hold that appellant's actions and the location at which they took place,when viewed through the prism of an experienced police officer, gave rise to a
 
I. particularized and reasonable suspicion of criminal activity. We also hold thatthe officer's drawing of his gun was reasonable under the circumstances and didnot transform the legitimate stop into an arrest. We further hold that the officer was warranted in the belief that his safety was in danger and therefore his patdown of appellant clearly was justified.4While we acknowledge that this is a close case, for the reasons which followwe affirm.5We summarize only those facts believed necessary to an understanding of theissues raised on appeal.6On May 2, 1985 at 1:00 PM two Boston police detectives and a DEA agent inan unmarked car were patrolling that portion of Boston known as the "CombatZone" for drug activity. The Combat Zone is a high crime area known for  prostitution and drug dealing. As the officers were stopped at a light, theynoticed a gray Thunderbird automobile stopped on the curb of WashingtonStreet with a man (whom we now know as appellant) at the wheel. WashingtonStreet is the main street of this portion of the Combat Zone. As the officerswatched, a second man approached the Thunderbird from the sidewalk andengaged appellant in a twenty second conversation through the open passenger-side window. The second man got into the car and had an additional five or tensecond conversation with appellant. The car then pulled out and proceeded for two blocks until it made a right turn onto Hayward Place, a short street whichconnects Washington Street and Harrison Avenue. The officers followed theThunderbird in their unmarked car.7While Hayward Place is trafficked during early morning and late afternoonrush hours, it was deserted at the time appellant entered it. The officers parkedthree car lengths behind appellant's car and had an unobstructed view of it. Theofficers observed appellant and the second man engaged in a thirty seconddiscussion with their heads inclined toward each other. The second man thengot out of the car and walked back toward Washington Street. One of theofficers followed him on foot.8Appellant, with the other two officers following, drove his car out of HaywardPlace onto Harrison Avenue where he stopped for a red light. The two officers,who were not in uniform, got out of their car and approached appellant's car onfoot. The officer on the driver's side of appellant's car approached with his
 
II. badge in his left hand and his drawn gun in his right hand. That officer identified himself as a police officer and asked appellant to get out of the car.As appellant opened the door and got out, the officer noticed a "bulge" inappellant's right-hand pants pocket. The officer asked appellant what it was and patted it with his hand. The officer testified that it felt hard and narrow like aknife. The officer reached into the pocket and found a knife with a spring-activated blade retracted in the handle. The officer then arrested appellant for carrying an illegal weapon in violation of state law. A subsequent search of appellant's person at the station house during booking disclosed two half-gram packets of cocaine in appellant's hat. An inventory search of appellant's car disclosed a fake oil can containing 22 half-gram packets of cocaine.9On May 17, 1985 appellant was indicted on one count of possession of cocainewith intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). OnJune 10, 1985 appellant moved to suppress the cocaine seized from his personand car as products of an illegal search. Appellant claimed that the officers didnot have either "articulable suspicion" to justify stopping appellant or probablecause to arrest him. He also claimed that the inventory search of the car wasillegal even if the stop and arrest were legal.10In an opinion dated August 5, 1985 the district court granted the motion tosuppress in part. The court held that the circumstances leading to the officers'stop of appellant provided sufficient articulable suspicion to permit a Terrystop. Terry v. Ohio, 392 U.S. 1, (1968). The court held that the officer's seizureof the knife also was justified under Terry. The court, therefore, refused tosuppress the cocaine found on appellant's person as fruit of a lawful stop andarrest. The court, however, held that the inventory search was in bad faith andimpermissible. It suppressed the cocaine found in the trunk. The governmentappealed that portion of the order suppressing the cocaine found in the trunk.We reversed the district court and held the inventory search to be permissible.790 F.2d 205 (1st Cir.1986). We did not address the court's Terry ruling.11On June 16, 1986 appellant entered a conditional plea of guilty, reserving hisright to appeal the permissibility of his stop and arrest. See Fed.R.Crim.P. 11(a)(2). On July 18, 1986 the court sentenced appellant to two years in prison. Hecurrently is serving the sentence.12For the reasons stated below, we affirm the judgment of conviction and of course the propriety of the May 2, 1985 stop and arrest.
 
"whether the officer's action was justified at its inception, and whether it wasreasonably related in scope to the circumstances which justified the interference inthe first place."A.13In Terry v. Ohio, supra, 392 U.S. at 25-27, the Supreme Court recognized that,although the Fourth Amendment regulates police-citizen encounters which fallshort of full scale arrests, it does not prohibit encounters based on less than probable cause for arrest. While it is beyond cavil that not all police-citizenencounters implicate Fourth Amendment concerns, there is a grey area intowhich some encounters fall. The Court in Terry held that more intrusiveencounters, short of a full scale arrests, must be justified by reasonablesuspicion proportional to the degree of the intrusion. Id. at 19. That suspicioncannot be inchoate, but must be based on "specific and articulable facts ...together with rational inferences from those facts...." Id. at 21.14The Supreme Court has enunciated a dual inquiry for evaluating thereasonableness of a "Terry stop". A court reviewing police action must inquire:1516United States v. Sharpe, 470 U.S. 675, (1985) (quoting Terry, supra, 392 U.S.at 23. See also United States v. Streifel, 781 F.2d 953 (1st Cir.1986) (applyingSharpe standard). In the instant case, having made this inquiry, we answer it inthe affirmative and hold that the investigative stop of appellant was reasonableand comported with Terry requirements. In so holding, we believe it isappropriate to state that the facts presented by this case, in our view, representthe outermost reaches of a permissible Terry stop; and it should be borne inmind that "... in law as in life, today's satisfactory explanation may very well betomorrow's lame excuse." United States v. Vazquez, 605 F.2d 1269, 1280 (2dCir.1979).17We wish to make clear at the outset that a determination of whether the stopwas justified at its inception depends on the totality of the circumstancesconfronting the officer. "[T]he assessment must be based upon all of thecircumstances." United States v. Cortez, 449 U.S. 411, 418 (1981). As theSecond Circuit put it, "We view as wise the admonition of the District of Columbia Circuit that 'the circumstances before [the officer] are not to bedissected and viewed singly; rather they must be considered as a whole.' "United States v. Magda, 547 F.2d 756, 758 (2d Cir.1976), cert. denied, 434U.S. 878 (1977) (quoting United States v. Hall, 525 F.2d 857, 859(D.C.Cir.1976)).

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